Citation Nr: 1100368
Decision Date: 01/04/11 Archive Date: 01/11/11
DOCKET NO. 05-31 455 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque,
New Mexico
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The Veteran served on active duty from December 1969 to December
1971.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from an April 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New
Mexico. In July 2007 and September 2009, the Board remanded this
claim for additional development.
The Board notes that recent VA correspondence to the Veteran has
been returned. A review of this correspondence shows that it was
sent to the Raymond G. Murphy VA facility, where the Veteran
previously has been an in-patient. Clearly, he no longer is
staying there. His other official address of record is in
Bloomfield, New Mexico. The RO should endeavor to determine the
correct and current address. Since his claim is being granted
below, there is no prejudice to him that he did not receive these
notices.
FINDING OF FACT
PTSD is attributable to service.
CONCLUSION OF LAW
PTSD was incurred in active service. 38 U.S.C.A. § 1110 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304(f) (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
There has been a significant change in the law with the enactment
of the Veterans Claims Assistance Act of 2000 (VCAA). See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being
granted. As such, any deficiencies with regard to VCAA are
harmless and nonprejudicial.
Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA
regulation provides that, with chronic disease shown as such in
service (or within an applicable presumptive period under section
3.307) so as to permit a finding of service connection,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless clearly
attributable to intercurrent causes. For the showing of chronic
disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis, etc.),
there is no requirement of an evidentiary showing of continuity.
Continuity of symptomatology is required only where the condition
noted during service (or in the presumptive period) is not, in
fact, shown to be chronic or where the diagnosis of chronicity
may be legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of continuity
after discharge is required to support the claim. 38 C.F.R. §
3.303(b).
In addition, service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was incurred
in service. 38 C.F.R. § 3.303(d).
Service connection for posttraumatic stress disorder requires
medical evidence diagnosing the condition in accordance with
§4.125(a) of this chapter; a link, established by medical
evidence, between current symptoms and an in-service stressor;
and credible supporting evidence that the claimed in-service
stressor occurred. See 38 C.F.R. § 3.303(f).
The following provisions apply to claims for service connection
of posttraumatic stress disorder diagnosed during service or
based on the specified type of claimed stressor:
(1) If the evidence establishes a diagnosis of
posttraumatic stress disorder during service and the
claimed stressor is related to that service, in the absence
of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the Veteran's
service, the Veteran's lay testimony alone may establish
the occurrence of the claimed in-service stressor.
(2) If the evidence establishes that the Veteran engaged in
combat with the enemy and the claimed stressor is related
to that combat, in the absence of clear and convincing
evidence to the contrary, and provided that the claimed
stressor is consistent with the circumstances, conditions,
or hardships of the Veteran's service, the Veteran's lay
testimony alone may establish the occurrence of the claimed
in-service stressor.
(3) If a stressor claimed by the Veteran is related
to the Veteran's fear of hostile military or
terrorist activity and a VA psychiatrist or
psychologist, or a psychiatrist or psychologist with
whom VA has contracted, confirms that the claimed
stressor is adequate to support a diagnosis of
posttraumatic stress disorder and that the Veteran's
symptoms are related to the claimed stressor, in the
absence of clear and convincing evidence to the
contrary, and provided the claimed stressor is
consistent with the places, types, and circumstances
of the Veteran's service, the Veteran's lay testimony
alone may establish the occurrence of the claimed in-
service stressor. For purposes of this paragraph,
"fear of hostile military or terrorist activity"
means that a Veteran experienced, witnessed, or was
confronted with an event or circumstance that
involved actual or threatened death or serious
injury, or a threat to the physical integrity of the
Veteran or others, such as from an actual or
potential improvised explosive device; vehicle-
imbedded explosive device; incoming artillery,
rocket, or mortar fire; grenade; small arms fire,
including suspected sniper fire; or attack upon
friendly military aircraft, and the Veteran's
response to the event or circumstance involved a
psychological or psycho-physiological state of fear,
helplessness, or horror.
(4) If the evidence establishes that the Veteran was a
prisoner-of-war under the provisions of §3.1(y) of this
part and the claimed stressor is related to that prisoner-
of-war experience, in the absence of clear and convincing
evidence to the contrary, and provided that the claimed
stressor is consistent with the circumstances, conditions,
or hardships of the veteran's service, the veteran's lay
testimony alone may establish the occurrence of the claimed
in-service stressor.
(5) If a posttraumatic stress disorder claim is based on
in-service personal assault, evidence from sources other
than the Veteran's service records may corroborate the
veteran's account of the stressor incident. Examples of
such evidence include, but are not limited to: records from
law enforcement authorities, rape crisis centers, mental
health counseling centers, hospitals, or physicians;
pregnancy tests or tests for sexually transmitted diseases;
and statements from family members, roommates, fellow
service members, or clergy. Evidence of behavior changes
following the claimed assault is one type of relevant
evidence that may be found in these sources. Examples of
behavior changes that may constitute credible evidence of
the stressor include, but are not limited to: a request for
a transfer to another military duty assignment;
deterioration in work performance; substance abuse;
episodes of depression, panic attacks, or anxiety without
an identifiable cause; or unexplained economic or social
behavior changes. VA will not deny a posttraumatic stress
disorder claim that is based on in-service personal assault
without first advising the claimant that evidence from
sources other than the veteran's service records or
evidence of behavior changes may constitute credible
supporting evidence of the stressor and allowing him or her
the opportunity to furnish this type of evidence or advise
VA of potential sources of such evidence. VA may submit any
evidence that it receives to an appropriate medical or
mental health professional for an opinion as to whether it
indicates that a personal assault occurred.
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with the
veteran prevailing in either event, or whether a preponderance of
the evidence is against the claim, in which case the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so,
the Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence that it finds to be
persuasive or unpersuasive, and providing reasons for rejecting
any evidence favorable to the appellant. See Masors v.
Derwinski, 2 Vet. App. 181 (1992).
In this case, the Veteran was not in combat service, nor does he
assert such. Here, the Board must pay particular attention to
the requirements of 38 C.F.R. § 3.304(f)(3), which, as addressed
above, provide that VA must consider other substitute forms of
evidence and information, beyond that contained in the Veteran's
service records, as possible evidence in support of the
occurrence of a claimed in-service stressor related to personal
assault. Claims involving personal assaults fall within the
category of situations in which it is not unusual for there to be
an absence of service records documenting the events the Veteran
has alleged. See, e.g., Patton v. West, 12 Vet. App. at 281.
The Veteran contends that he endured stressors during service.
His contentions are contained in VA treatment records. See VA
medical records dated October 20. 2004 and June 3, 2009. The
Veteran described stressors not previously noted in detail in the
record. He reported stressors based on personal assault.
Specifically, he stated that while in Vietnam, he was held down
and forced to watch a couple of girls being raped. He stated
that he heard women screaming from another hooch area and went to
their aid. He reported that he tried unsuccessfully to
intervene, and he was severely beaten and kicked in the stomach
and tail bone. He stated that he was then forced to watch the
girls being hurt while restrained. He stated he could not
persuade a friend to return with him to confront the soldiers and
that he reported the incident to his superiors, but they were
also afraid of the perpetrators. He also reported that a couple
of weeks later, he heard the cries of a woman and went to the
perpetrators' hooch with his pistol. He indicated that three men
were waiting in ambush and took his weapon away. He indicated
that they held the pistol at his throat and cocked it. He
reported that he was severely beaten and that after seeing the
mutilated girl he was told that this would happen to him if he
did not shut up. He felt "gutless" and did nothing until the
next day when he reported the incident. Thereafter, for three
days he remained hypervigilant until he was transferred and that
at the new station 30 miles away people had been told that he was
a snitch. He said that he was shunned, and feared being shot in
the back. He reported that he was eventually sent back to the
United States where he increased his alcohol use to self medicate
his anxiety. VA examiners have diagnosed PTSD and the Axis IV
finding was, war memories, interpersonal stressors.
The Board observes that only the Veteran's induction examination
is of record with regard to service treatment records. However,
service personnel records do confirm an inservice transfer
(during service in Vietnam) after about 30 days.
In sum, there is no inservice specific evidence which
corroborates the Veteran's allegations regarding the claimed
personal assaults and threats. As noted, inservice evidence is
not required and there may be considered other corroborating
evidence. In this case, there is other evidence which weighs in
favor of and against the Veteran's claim. This evidence consists
of the personnel records which show an inservice transfer. In
addition, VA examiners have attributed psychiatric diagnoses of
PTSD to the purported stressors and apparently found those
stressors sufficient to result in the diagnoses. The medical
examiners are competent to make those complex assessments. See
generally Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).
The evidence against the claim consists of the Veteran's failure
to initially tell VA of his stressors; however, there is
contemporaneous medical evidence containing the claimed
stressors. It appears that he was just non-specific in his claim
correspondence. There is not much corroborating evidence, but
this represents an absence of evidence, rather than negative
evidence. See generally Dulin v. Mansfield, 250 Fed. App. 338
(Fed. Cir. 2007).
As noted above, 38 C.F.R. § 3.303(f) (3) provides that a VA
psychiatrist or psychologist, or a psychiatrist or psychologist
with whom VA has contracted, confirms that the claimed stressor
is adequate to support a diagnosis of PTSD and that the Veteran's
symptoms are related to the claimed stressor, in the absence of
clear and convincing evidence to the contrary, and provided the
claimed stressor is consistent with the places, types, and
circumstances of the Veteran's service, the Veteran's lay
testimony alone may establish the occurrence of the claimed in-
service stressor. In this case, the Board will afford the
Veteran the benefit-of-the-doubt, as required by VA law and
regulations, that the claimed incidents are consistent with the
places, types, and circumstances of the Veteran's service and
that there is evidence that tends to corroborate the existence of
the claimed inservice stressors. The Board is also persuaded by
the examiners' conclusions that the Veteran was credible in his
report of the assaults and threats. Therefore, there is credible
and persuasive evidence which places the evidence for and against
the claim in equipoise.
Accordingly, the Board finds that the evidence in this case is so
evenly balanced so as to allow application of the benefit-of-the-
doubt rule and service connection for PTSD, to include a mood
disorder and depressive disorder, is warranted.
ORDER
Service connection for PTSD, to include a mood disorder and
depressive disorder, is granted.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs